CHAPTER 7 Criminal Law and CybercrimeNew York Police Departmen.docx

CHAPTER 7 Criminal Law and Cybercrime
New York Police Department, Times Square, New York City
Criminal cases make up a large portion of cases tried in U.S.
courts. Criminal cases are bought against persons for violating
federal, state, and local laws. Suspected criminals are given
many rights by the U.S. Constitution and state constitutions.
Parties in the United States are free from unreasonable searches
and seizures of evidence, and any evidence obtained illegally is
considered tainted evidence and cannot be used in court. People
who are suspected of a criminal act may assert their right of
privilege against self-incrimination and may choose not to
testify at any pretrial proceedings or at trial. Parties have a
right to a public trial by a jury of their peers. In addition, if
convicted of a crime, the criminal is free from cruel and unusual
punishment.
Learning Objectives
After studying this chapter, you should be able to:
1. List and describe the essential elements of a crime.
2. Describe criminal procedure, including arrest, indictment,
arraignment, and the criminal trial.
3. Identify and define business and white-collar crimes.
4. List and describe cybercrimes.
5. Explain the constitutional safeguards provided by the Fourth,
Fifth, Sixth, and Eighth Amendments to the U.S. Constitution.
Chapter Outline
1. Introduction to Criminal Law and Cybercrime
2. Definition of a Crime
1. CONTEMPORARY ENVIRONMENT • Criminal Acts as the
Basis for Tort Actions
3. Criminal Procedure
4. Common Crimes
1. ETHICS • Murder Conviction Upheld on Appeal
5. Business and White-Collar Crimes

1. BUSINESS ENVIRONMENT • Corporate Criminal Liability
6. Cybercrimes
1. DIGITAL LAW • The Internet and Identity Theft
2. Case 7.1 • United States v. Barrington
7. Fourth Amendment Protection From Unreasonable Search and
Seizure
1. Case 7.2 • U.S. SUPREME COURT CASE • Navarette v.
California
2. Case 7.3 • U.S. SUPREME COURT CASE • Maryland v.
King
3. Case 7.4 • U.S. SUPREME COURT CASE • Riley v.
California and United States v. Wurie
8. Fifth Amendment Privilege Against Self-Incrimination
1. Case 7.5 • Ragland v. Commonwealth of Kentucky
9. Other Constitutional Protections
1. GLOBAL LAW • France Does Not Impose the Death Penalty
“It is better that ten guilty persons escape than that one
innocent suffer.”
—Sir William Blackstone Commentaries on the Laws of
England (1765)
Introduction to Criminal Law and Cybercrime
For members of society to coexist peacefully and for commerce
to flourish, people and their property must be protected from
injury by other members of society. Federal, state, and local
governments’ criminal laws are intended to afford this
protection by providing an incentive for persons to act
reasonably in society and imposing penalties on persons who
violate the laws.
There can be no equal justice where the kind of trial a man gets
depends on the amount of money he has.
Justice Black
Griffin v. Illinois 351 U.S. 12, 76 S.Ct. 585, 1956 U.S. Lexis
1059 (1956)
The United States has one of the most advanced and humane
criminal law systems in the world. It differs from other criminal
law systems in several respects. Under many other countries’

legal systems, a person accused of a crime is presumed guilty
unless the person can prove he or she is not. A person charged
with a crime in the United States is presumed innocent until
proven guilty. The burden of proof in a criminal trial is on the
government to prove that the accused is guilty of the crime
charged. Further, the accused must be found guilty beyond a
reasonable doubt. Conviction requires unanimous jury vote. A
person charged with a crime in the United States is also
provided with substantial constitutional safeguards during the
criminal justice process.
The jury, passing on the prisoner’s life, May, in the sworn
twelve, have a thief or two Guiltier than him they try.
William Shakespeare
Measure for Measure
Many crimes are referred to as white-collar crimes because they
are most often committed by business managers and employees.
These crimes include fraud, bribery, and other such crimes. In
addition, in the information age, many cybercrimes are
committed using computers and the Internet.
This chapter discusses criminal procedure, crimes, business and
white-collar crimes, cybercrimes, and constitutional safeguards
afforded criminal defendants.
Definition of a Crime
A crime is defined as any act done by an individual in violation
of those duties that he or she owes to society and for the breach
of which the law provides that the wrongdoer shall make
amends to the public. Many activities have been considered
crimes through the ages, whereas other crimes are of recent
origin.
crime
A violation of a statute for which the government imposes a
punishment.
Penal Codes and Regulatory Statutes
Statutes are the primary source of criminal law. Most states
have adopted comprehensive penal codes that define in detail
the activities considered to be crimes within their jurisdictions

and the penalties that will be imposed for their commission. A
comprehensive federal criminal code defines federal crimes.1
penal code
A collection of criminal statutes.
Examples
Each state has a criminal penal code that lists and defines the
activities that are illegal in that state. These crimes include
first-degree murder, burglary, robbery, arson, rape, and other
crimes.
In addition, state and federal regulatory statutes often provide
for criminal violations and penalties. The state and federal
legislatures are continually adding to the list of crimes.
regulatory statutes
Statutes such as environmental laws, securities laws, and
antitrust laws that provide for criminal violations and penalties.
Examples
Federal securities statutes are regulatory statutes that establish
rules for disclosure of information before securities can be sold
to the public. These federal statutes also make it a crime for an
issuer of securities to defraud investors.
The penalty for committing a crime may consist of the
imposition of a fine, imprisonment, both, or some other form of
punishment (e.g., probation). Generally, imprisonment is
imposed to (1) incapacitate the criminal so he or she will not
harm others in society, (2) provide a means to rehabilitate the
criminal, (3) deter others from similar conduct, and (4) inhibit
personal retribution by the victim.
Parties to a Criminal Action
In a criminal lawsuit, the government (not a private party) is
the plaintiff. The government is represented by a lawyer called
the prosecutor or prosecuting attorney. The accused, which is
usually an individual or a business, is the defendant. The
accused is represented by a defense attorney. Sometimes the
accused will hire a private attorney to represent him or her if he
or she can afford to do so. If the accused cannot afford a private
defense lawyer, the government will provide one free of charge.

This government defense attorney is often called a public
defender.
Law cannot persuade where it cannot punish.
Thomas Fuller
Gnomologia (1732)
Classification of Crimes
Crimes are classified from serious to minor. A crime is usually
classified as one of the following:
felony
The most serious type of crime; an inherently evil crime. Most
crimes against persons and some business-related crimes are
felonies.
misdemeanor
A crime that is less serious than a felony; a crime that is not
inherently evil but prohibited by society. Many crimes against
property are misdemeanors.
violation
A crime that is neither a felony nor a misdemeanor that is
usually punishable by a fine.
· Felony. Felonies are the most serious kinds of crimes.
Felonies include crimes that are mala in se—that is, inherently
evil. Felonies are usually punishable by imprisonment. In some
jurisdictions, certain felonies (e.g., first-degree murder) are
punishable by death. Federal law2 and some state laws require
mandatory sentencing for specified crimes. Many statutes define
different degrees of crimes (e.g., first-, second-, and third-
degree murder). Each degree earns different penalties. Serious
violations of regulatory statutes are also felonies.
Examples
Most crimes against persons (e.g., murder, rape) and certain
business-related crimes (e.g., embezzlement, bribery) are
felonies in most jurisdictions.
· Misdemeanor. Misdemeanors are less serious than felonies.
They are crimes mala prohibita; that is, they are not inherently
evil but are prohibited by society. Misdemeanors carry lesser
penalties than felonies. They are usually punishable by fines

and/or imprisonment for one year or less.
Examples
Many crimes committed against property, such as robbery,
burglary, and less serious violations of regulatory statutes, are
classified as misdemeanors in most jurisdictions.
· Violation. Violations are the least serious of crimes. These
crimes are generally punishable by fines. Occasionally, one day
or a few days of imprisonment is imposed.
Examples
Crimes such as traffic violations and jaywalking are usually
classified as violations.
CONCEPT SUMMARY Classification of Crimes
Classification
Description
Felony
The most serious kinds of crimes. They are mala in
se (inherently evil) and are usually punishable by imprisonment.
Misdemeanor
Crimes that are less serious than felonies. They are mala
prohibita (prohibited by society) and are usually punishable by
fine and/or imprisonment for less than one year.
Violation
Crimes that are neither felonies nor misdemeanors. Violations
are generally punishable by a fine.
Intent Crimes
Most crimes require criminal intent to be proven before the
accused can be found guilty of the defined crime. Two elements
must be proven for a person to be found guilty of an intent
crime : (1) criminal act (actus reus) and (2) criminal intent
(mens rea).
intent crime
A crime that requires the defendant to be found guilty of
committing a criminal act (actus reus) with criminal intent
(mens rea).
actus reus
“Guilty act”—the actual performance of a criminal act.

mens rea
“Evil intent”—the possession of the requisite state of mind to
commit a prohibited act.
specific intent crime
A crime that requires that the perpetrator intended to achieve a
specific result from his or her illegal act.
general intent crime
A crime that requires that the perpetrator either knew or should
have known that his or her actions would lead to harmful
results.
1. Criminal act (actus reus). The defendant must have actually
performed the prohibited act. The actual performance of the
criminal act is called the actus reus(guilty act). Sometimes, the
omission of an act can constitute the requisite actus reus.
Examples
Killing someone without legal justification constitutes a
criminal act (actus reus) because the law forbids persons from
killing one another. If a taxpayer who is under a legal duty to
file income tax returns and to pay income taxes that are due the
government fails to do so, there is the requisite criminal act
(actus reus). A person who commits auto theft has engaged in a
criminal act.
2. Criminal intent (mens rea). To be found guilty of an intent
crime, the accused must be found to have possessed the
requisite state of mind when the act was performed. This is
called mens rea(evil intent). Juries may infer a defendant’s
intent from the facts and circumstances of the case. Many
jurisdictions have defined intent crimes as either general
intent crimes or specific intent crimes:
a. Specific intent crime. Specific intent crimes require that the
perpetrator intended to achieve a specific result from his or her
illegal act.
Examples
Premeditated murder is a specific intent crime because the
perpetrator intends a specific result, the death of the victim.
Arson, forgery, and fraud are other examples of specific intent

crimes.
b. General intent crime. General intent crimes require that the
perpetrator either knew or should have known that his or her
actions would lead to harmful results. The government does not
have to prove that the accused intended the precise harm that
resulted from his or her actions.
Examples
Assault and battery are usually considered general intent crimes
because the perpetrator intends to commit the crime but does
not know the actual result of the crime in advance.
Individual criminal statutes state whether the crime requires a
showing of specific or general intent. Some jurisdictions have
eliminated the distinction between specific and general crimes.
Merely thinking about committing a crime is not a crime
because no action has been taken. Thus, merely thinking about
killing someone or evading taxes and not actually doing so is
not a crime.
CONCEPT SUMMARY Elements of an Intent Crime
Element
Description
Actus reus
Guilty act
Mens rea
Evil intent
Nonintent Crimes
Most states have enacted laws that define certain unintended
conduct as a crime. These are called nonintent crimes .
Nonintent crimes are often imposed for reckless or grossly
negligent conduct that causes injury to another person.
nonintent crime
A crime that imposes criminal liability without a finding
of mens rea (intent).
The following feature discusses how criminal acts may also be
the basis for civil tort actions by an injured victim or a deceased
victim’s relatives.
Contemporary Environment Criminal Acts as the Basis for Tort

Actions
An injured victim of a crime or the relatives of a deceased
victim of a crime may bring a civil action against a wrongdoer
who has caused injury or death during the commission of a
criminal act. Civil lawsuits are separate from the government’s
criminal action against the wrongdoer. In a civil lawsuit, the
plaintiff usually wants to recover monetary damages from the
wrongdoer.
Example
A person commits the crime of battery and physically injures
the victim. In this case, the government can prosecute the
perpetrator for the crime of battery. In addition, the victim may
sue the perpetrator in a civil lawsuit to recover monetary
damages for the injuries the victim suffers because of the
attack.
In many cases, a person injured by a criminal act does not sue
the criminal to recover civil damages because the criminal is
often judgment proof—that is, the criminal does not have the
money to pay a civil judgment.
Criminal and civil law differ in the following ways:
Issue
Civil Law
Criminal Law
Party who brings the action
The plaintiff
The government
Trial by jury
Yes, except actions for equity
Yes
Burden of proof
Preponderance of the evidence
Beyond a reasonable doubt
Jury vote
Judgment for plaintiff requires specific jury vote (e.g., 9 of 12
jurors)
Conviction requires unanimous jury vote

Sanctions and penalties
Monetary damages and equitable remedies (e.g., injunction,
specific performance)
Imprisonment, capital punishment, fine, probation
Criminal Procedure
The procedure for initiating and maintaining a criminal action is
quite detailed. It includes both pretrial procedures and the
actual trial.
Critical Legal Thinking
1. Compare a criminal case with a civil case. Why is there such
a difference in the burden of proof? Why is there a difference in
the required jury vote?
Arrest
Before the police can arrest a person for the commission of a
crime, they usually must obtain an arrest warrant based on a
showing of probable cause. The police go before a judge and
present the evidence they have for arresting the suspect. If the
judge finds that there is probable cause to issue the warrant, he
or she will do so. The police will then use the arrest warrant to
arrest the suspect. Probable cause is defined as the substantial
likelihood that a person either committed or is about to commit
a crime.
arrest warrant
A document for a person’s detainment, based on a showing of
probable cause that the person committed a crime.
Example
The police have obtained information from a reliable informant
about the criminal activity of an individual; they further
investigate the situation and arrive at the conclusion that the
individual who is the target of their investigation is involved in
the illegal selling of drugs. The police can take this evidence,
place it before a judge, and request that the judge issue an arrest
warrant. If the judge believes there is probable cause, the judge
will issue an arrest warrant. The police can then arrest the
suspect pursuant to the arrest warrant.

probable cause
Evidence of the substantial likelihood that a person either
committed or is about to commit a crime.
An arrest can be made without obtaining an arrest warrant if
there is no time to obtain one or it is otherwise not feasible to
obtain a warrant prior to the arrest. Warrantless arrests must be
based on probable cause.
warrantless arrest
An arrest that is made without obtaining an arrest warrant. The
arrest must be based on probable cause and a showing that it
was not feasible to obtain an arrest warrant.
WEB EXERCISE
Go to www.fbi.govand click on “Most Wanted” and then “Ten
Most Wanted Fugitives.” Who is the number-one fugitive listed,
and what crime is he or she wanted for?
Example
The police can make a warrantless arrest if they arrive during
the commission of a crime, when a person is fleeing from the
scene of a crime, or when it is likely that evidence will be
destroyed.
Example
In Atwater v. Lago Vista, Texas,3 the U.S. Supreme Court held
that a police officer may make a warrantless arrest pursuant to a
minor criminal offense. Gail Atwater was driving her pickup
truck in Lago Vista, Texas, with her 3-year-old son and 5-year-
old daughter in the front seat. None of them were wearing seat
belts. Bart Turek, a Lago Vista police officer, observed the seat
belt violation and pulled Atwater over. A friend of Atwater’s
arrived at the scene and took charge of the children. Turek
handcuffed Atwater, placed her in his squad car, and drove her
to the police station. Atwater was booked, her mug shot was
taken, and she was placed in a jail cell for about one hour, until
she was released on $310 bond. Atwater ultimately pleaded no
contest to the misdemeanor seat belt offenses and paid a $50
fine. Atwater sued the City of Lago Vista and the police officer
for compensatory and punitive damages for allegedly violating

her Fourth Amendment right to be free from unreasonable
seizure. The U.S. Supreme Court ruled against Atwater, finding
that the Fourth Amendment permits police officers to make a
warrantless arrest pursuant to a minor criminal offense.
After a person is arrested, he or she is taken to the police
station to be booked. Booking is the administrative procedure
for recording an arrest, fingerprinting the suspect, taking a
photograph of the suspect (often called a mug shot), and so on.
Indictment or Information
An accused person must be formally charged with a crime
before he or she can be brought to trial. This is usually done
through an indictment issued by a grand jury or
an information statement issued by a magistrate.
indictment
The charge of having committed a crime (usually a felony),
based on the judgment of a grand jury.
information
The charge of having committed a crime (usually a
misdemeanor), based on the judgment of a judge (magistrate).
arraignment
A hearing during which the accused is brought before a court
and is (1) informed of the charges against him or her and (2)
asked to enter a plea.
Evidence of serious crimes, such as murder, is usually presented
to a grand jury. Most grand juries are comprised of between 6
and 24 citizens who are charged with evaluating the evidence
presented by the government. Grand jurors sit for a fixed period
of time, such as one year. If the grand jury determines that there
is sufficient evidence to hold the accused for trial, it issues an
indictment. Note that the grand jury does not determine guilt. If
an indictment is issued, the accused will be held for later trial.
For lesser crimes (e.g., burglary, shoplifting), the accused is
brought before a magistrate (judge). A magistrate who finds that
there is enough evidence to hold the accused for trial issues an
information statement.
The case against the accused is dismissed if neither an

indictment nor an information statement is issued.
Arraignment
If an indictment or information is issued, the accused is brought
before a court for an arraignment proceeding during which the
accused is (1) informed of the charges against him or her and
(2) asked to enter a plea. The accused may plead guilty or not
guilty.
Bail Bond
When a person is arrested, a bail amount is usually set by the
court. If the court sets a bail amount and the arrested person
posts bail (pays the bail amount), he or she can be released from
prison. If he or she does not post bail, the arrestee may be kept
in jail for some period of time and, in serious crimes, until the
date of trial. The arrested person can post the bail him- or
herself by paying the court the set bail amount, which will be
returned to him or her if he or she shows up for trial. More
often, the arrestee (or a relative or friend) pays a bail bonds
professional who operates a bail bonds business to post a bail
bond with the court. Bail bonds professionals usually require
payment of 10 percent of the bail in order to post bond. For
example, if the bail is set at $100,000, then the arrestee pays the
bail bonds professional $10,000 to post bail. The bail bonds
professional keeps this $10,000 payment. The bail bonds
professional guarantees the court that he or she will pay the
court $100,000 if the arrestee does not show up for trial. If this
happens, the bail bonds professional attempts to obtain the
amount of the bond—here, $100,000—from the arrestee. Bail
bonds professionals often require collateral (e.g., title to an
automobile, second mortgage on a house) before they issue a
bail bond.
Example
Peter has been arrested for the crime of automobile theft. At the
arraignment, Peter is asked how he pleads. Peter replies, “Not
guilty.” Peter has pleaded not guilty rather than guilty. The
majority of accused persons plead not guilty at their

arraignment.
Nolo Contendere
A party may enter a plea of nolo contendere, whereby the
accused agrees to the imposition of a penalty but does not admit
guilt. The government has the option of accepting a nolo
contendere plea or requiring the defendant to plead guilty or not
guilty. If the government agrees to accept the nolo
contendere plea, the accused and the government usually enter
into a plea bargain in which the accused agrees to the
imposition of a penalty but does not admit guilt. A nolo
contendere plea cannot be used as evidence of liability against
the accused at a subsequent civil trial. Corporate defendants
often enter this plea.
Example
The government brings charges against a corporation for
criminally violating environmental pollution laws. The
government and the corporation enter into an agreement
whereby the corporation pleas nolo contendere and agrees to
pay a fine of $5 million but does not plead guilty to the
violation.
Plea Bargain
Sometimes the accused and the government enter into plea
bargain negotiations prior to trial with the intent of avoiding a
trial. If an agreement is reached, the government and the
accused execute a plea bargaining agreement that sets forth the
terms of their agreement.
plea bargain agreement
An agreement in which the accused admits to a lesser crime
than charged. In return, the government agrees to impose a
lesser sentence than might have been obtained had the case gone
to trial.
Example
An accused is charged with first-degree murder, which if proven
carries a penalty of life imprisonment. The government and the
accused engage in plea bargaining, and an agreement is reached
whereby the accused agrees to plead guilty to the crime of

second-degree murder, which carries a maximum penalty of 20
years in jail. Therefore, a trial is avoided.
The government engages in plea bargaining to save costs, avoid
the risks of a trial, and prevent further overcrowding of the
prisons. In return, the government agrees to impose a lesser
penalty or sentence on the accused than might have been
obtained had the case gone to trial and the accused found guilty.
The accused often agrees to a plea bargain to avoid the risks of
trial, where, if he or she were found guilty, he or she would be
subject to a greater penalty than the penalty imposed by the plea
bargain he or she has agreed to with the government.
Approximately 95 percent of criminal cases are plea bargained
and do not go to trial. Of those that go to trial, the government
wins a conviction in approximately 75 percent of these cases.
1. Why does the government offer plea bargains rather than go
to trial? Is there any reason why an innocent person may agree
to a plea bargain of criminal charges?
Criminal Trial
At a criminal trial, all jurors must unanimously agree before the
accused is found guilty of the crime charged. If even one juror
disagrees (i.e., has reasonable doubt) about the guilt of the
accused, the accused cannot be found guilty of the crime
charged. If all the jurors agree that the accused did not commit
the crime, the accused is found not guilty of the crime charged.
After trial, the following rules apply:
hung jury
A jury that cannot come to a unanimous decision about the
defendant’s guilt. In the case of a hung jury, the government
may choose to retry the case.
· If the defendant is found guilty, he or she may appeal.
· If the defendant is found not guilty, the government cannot
appeal.
· If the jury cannot come to a unanimous decision about the
defendant’s guilt one way or the other, the jury is considered
a hung jury . In this situation, the government may choose to

retry the case before a new judge and jury.
Example
A defendant is tried for the crime of murder. A 12-person jury
hears the case. If 10 jurors find the defendant guilty but 2 jurors
find the defendant not guilty, then there is a hung jury. The
government may retry the defendant and often does so with such
a vote. However, if the vote had been four jurors voting guilty
and eight jurors voting not guilty, it is highly unlikely the
government would retry the case.
Common Crimes
Many common crimes are committed against persons and
property. Some of the most important common crimes against
persons and property are discussed in the following paragraphs.
Murder
Murder is defined as the unlawful killing of a human being by
another person without justification. In most states, there are
several degrees of murder—usually defined as first-degree
murder, second-degree murder, voluntary
manslaughter, and involuntary manslaughter:
murder
The unlawful killing of a human being by another person
without justification.
first-degree murder
The intentional unlawful killing of a human being by another
person with premeditation, malice aforethought, and willful act.
1. First-degree murder. First-degree murder is the intentional
unlawful killing of a human being by another person with
premeditation, malice aforethought, and willful act. When a
person can be executed for committing the murder, it is referred
to as capital murder.
Example
A person purchases a weapon for the purpose of killing
someone, lies in wait to kill that person, and then carries out the
murder.
2. Second-degree murder. Second-degree murder is the
intentional unlawful killing of a human being by another person

that is not premeditated or planned in advance. Second-degree
murder involves some deliberation but not long-term planning.
Example
Two persons who are at a bar get into an unplanned fight and
one of the combatants kills the other.
3. Voluntary manslaughter. Voluntary manslaughter is the
intentional unlawful killing of a human being by another person
that is not premeditated or planned in advance and that is
committed under circumstances that would cause a person to
become emotionally upset. Some states refer to this crime
as third-degree murder.
Example
A spouse comes home unexpectedly; finds his or her spouse
committing an act of infidelity; and in the heat of passion
“snaps” and kills the spouse, the lover, or both.
4. Involuntary manslaughter. Involuntary manslaughter is the
unintentional unlawful killing of a human being by another
person that is caused from a reckless or negligent act. Some
states refer to this crime as negligent homicide.
Example
A drunk driver unintentionally causes another person’s death.
The first three crimes are intent crimes. The fourth is a
nonintent crime. The penalties assessed against persons found to
have committed these crimes differ by state.
second-degree murder
person that is not premeditated or planned in advance.
voluntary manslaughter
person that is not premeditated or planned in advance and that is
committed under circumstances that would cause a reasonable
person to become emotionally disturbed.
involuntary manslaughter
The unintentional unlawful killing of a human being by another
person that is caused from a reckless or negligent act.
Felony Murder Rule

Sometimes a murder is committed during the commission of
another crime even though the perpetrator did not originally
intend to commit murder. Most states hold the perpetrator liable
for the crime of murder in addition to the other crime. This is
called the felony murder rule. The intent to commit the murder
is inferred from the intent to commit the other crime. Many
states also hold accomplices liable under this doctrine.
The following case involves the crime of murder.
Ethics Murder Conviction Upheld on Appeal
“In determining whether a verdict is against the manifest weight
of the evidence, the appellate court acts as a ‘thirteenth juror.’”
—Sadler, Judge
Gregory O. Wilson, who had been arguing earlier in the day
with his girlfriend, Melissa Spear, approached a parked car
within which Ms. Spear was seated and poured gasoline from a
beer bottle over her head. When Ms. Spear exited the car,
Wilson ignited her with his cigarette lighter, setting her body on
fire. As Ms. Spear became engulfed in flames, Wilson walked
away.
Ms. Spear was transported to a hospital. When she arrived, she
had third-degree burns over most of her body. She remained in a
coma for 45 days, during which time she underwent 10
surgeries. She was subsequently transferred to a rehabilitation
facility, and then home. Nine months after the incident and five
days before her 30th birthday, Ms. Spear’s 7-year-old son found
her lying dead in her bed.
The state of Ohio brought murder charges against Wilson.
Wilson argued that he was not liable for murder because there
was not sufficient causation between Wilson’s act of setting Ms.
Spear on fire and Ms. Spear’s death nine months later to
warrant a conviction for murder. The jury disagreed and
convicted Wilson of aggravated murder, and he was sentenced
to prison for 30 years to life. The court of appeals upheld the
conviction and sentence. The court stated, “In determining
whether a verdict is against the manifest weight of the evidence,
the appellate court acts as a ‘thirteenth juror.’ A defendant is

not relieved of culpability for the natural consequences of
inflicting serious wounds on another merely because the victim
later died of complications brought on by the injury.” State of
Ohio v. Wilson, 2004 Ohio 2838, 2004 Ohio App. Lexis 2503
(Court of Appeals of Ohio, 2004)
Ethics Questions
1. Do you think Wilson’s legal argument on appeal was
justified? If you were a juror in this case, what sentence would
you have imposed on Wilson?
Robbery
In common law, robbery is defined as the taking of personal
property from another person or business by the use of fear or
force. Robbery with a deadly weapon is generally considered
aggravated robbery (or armed robbery) and carries a harsher
penalty.
robbery
The taking of personal property from another person by the use
of fear or force.
Examples
If a person threatens to shoot another person with a gun unless
the victim gives her purse to that person, this constitutes the
crime of robbery. If a person picks a wallet from someone’s
pocket, it is not robbery because there has been no use of force
or fear. This is a theft.
Burglary
In common law, burglary is defined as “breaking and entering a
dwelling at night” with the intent to commit a felony. Modern
penal codes have broadened this definition to include daytime
thefts from homes, offices, commercial buildings, and other
buildings. In addition, the “breaking-in” element has been
abandoned by most modern definitions of burglary. Thus,
unauthorized entering of a building through an unlocked door is
sufficient. Aggravated burglary (or armed burglary) carries
stiffer penalties.
burglary
The taking of personal property from another’s home, office, or

commercial or other type of building.
Example
Harold breaks into Sibyl’s home and steals jewelry and other
items. Harold is guilty of the crime of burglary because he
entered a dwelling and committed theft.
Larceny
In common law, larceny is defined as the wrongful and
fraudulent taking of another person’s personal property that is
not robbery or burglary. Most personal property—including
tangible property, trade secrets, computer programs, and other
business property—is subject to larceny. Neither the use of
force nor the entry of a building is required. Some states
distinguish between grand larceny and petit larceny. This
distinction depends on the value of the property taken.
larceny
The taking of another’s personal property other than from his or
her person or building.
Examples
Stealing automobiles and stealing satellite radios from
automobiles are considered larcenies.
Theft
Some states have dropped the distinction among the crimes of
robbery, burglary, and larceny. Instead, these states group these
crimes under the general crime of theft. Most of these states
distinguish between grand theft and petit theft. The distinction
depends on the value of the property taken, a dollar amount that
varies from one state to the next.
Receiving Stolen Property
A person commits the crime of receiving stolen property if he or
she (1) knowingly receives stolen property and (2) intends to
deprive the rightful owner of that property. Knowledge and
intent can be inferred from the circumstances. The stolen
property can be any tangible property (e.g., personal property,
money, negotiable instruments, stock certificates).
receiving stolen property
A crime that involves (1) knowingly receiving stolen property

and (2) intending to deprive the rightful owner of that property.
Example
David is walking down the street and is approached by a man
who offers to sell David a Rolex watch “at a bargain price.”
David looks at the 20 Rolex watches that the man displays,
chooses one that would normally sell in a retail store for
$1,000, and pays $200 for it. It is an authentic Rolex watch.
David is guilty of the crime of receiving stolen property
because it could easily be proven by circumstantial evidence
that he had knowledge that the watch was stolen property.
Arson
In common law, arson is defined as the malicious or willful
burning of the dwelling of another person. Modern penal codes
have expanded this definition to include the burning of all types
of private, commercial, and public buildings.
arson
The willful or malicious burning of a building.
Examples
An owner of a motel burns down the motel to collect fire
insurance proceeds. The owner is guilty of the crime of arson.
In this case, the insurance company does not have to pay the
proceeds of any insurance policy on the burned property to the
arsonist-owner. On the other hand, if a third-party arsonist
burned down the motel without the knowledge or assistance of
the owner, the third party is the arsonist, and the owner is
entitled to recover the proceeds of any fire insurance he had on
the property.
Business and White-Collar Crimes
Certain types of crimes are prone to being committed by
businesspeople. These crimes are often referred to as white-
collar crimes . Such crimes usually involve cunning and deceit
rather than physical force. Many of the most important white-
collar crimes are discussed in the paragraphs that follow.
white-collar crime
Crimes that are often committed by businesspeople.
Forgery

The crime of forgery occurs if a written document is
fraudulently made or altered and that change affects the legal
liability of another person. Counterfeiting, falsifying public
records, and materially altering legal documents are examples
of forgery.
forgery
The fraudulent making or alteration of a written document that
affects the legal liability of another person.
Example
Signing another person’s signature to a check or changing the
amount of a check without the owner’s permission is forgery.
Note that signing another person’s signature without intent to
defraud is not forgery.
Example
Forgery has not been committed if one spouse signs the other
spouse’s payroll check for deposit in a joint checking or savings
account at the bank.
Embezzlement
The crime of embezzlement is the fraudulent conversion of
property by a person to whom that property was entrusted.
Typically, embezzlement is committed by an employer’s
employees, agents, or representatives (e.g., accountants,
lawyers, trust officers, treasurers). Embezzlers often try to
cover their tracks by preparing false books, records, or entries.
embezzlement
The fraudulent conversion of property by a person to whom
that property was entrusted.
The key element here is that the stolen property
was entrusted to the embezzler. This differs from robbery,
burglary, and larceny, where property is taken by someone not
entrusted with the property.
Examples
A bank entrusts a teller to take deposits from its customers and
deposit them into the customers’ accounts at the bank. Instead,
the bank teller absconds with the money. This is embezzlement.
A lawyer who steals money from a trust fund that has been

entrusted to him or her to administer commits the crime of
embezzlement.
Bribery
Bribery is one of the most prevalent forms of white-collar
crime. A bribe can be money, property, favors, or anything else
of value. The crime of commercial bribery entails the payment
of bribes to private persons and businesses. This type of bribe is
often referred to as a kickback, or payoff. Intent is a necessary
element of this crime. The offeror of a bribe commits the crime
of bribery when the bribe is tendered. The offeree is guilty of
the crime of bribery when he or she accepts the bribe. The
offeror can be found liable for the crime of bribery even if the
person to whom the bribe is offered rejects the bribe.
bribery
A crime in which one person gives another person money,
property, favors, or anything else of value for a favor in return.
A bribe is often referred to as a payoff or kickback.
Example
Harriet Landers is the purchasing agent for the ABC
Corporation and is in charge of purchasing equipment to be used
by the corporation. Neal Brown, the sales representative of a
company that makes equipment that can be used by the ABC
Corporation, offers to pay her a 10 percent kickback if she buys
equipment from him. She accepts the bribe and orders the
equipment. Both parties are guilty of bribery.
Modern penal codes also make it a crime to bribe public
officials.
Example
If a real estate developer who is constructing an apartment
building offers to pay the building inspector to overlook a
building code violation, this is bribery.
Extortion
The crime of extortion involves the obtaining of property from
another, with his or her consent, induced by wrongful use of
actual or threatened force, violence, or fear. Extortion occurs
when a person threatens to expose something about another

person unless that other person gives money or property. The
truth or falsity of the information is immaterial. Extortion of
private persons is commonly referred to as blackmail. Extortion
of public officials is called extortion under color of official
right.
extortion
A threat to expose something about another person unless that
other person gives money or property. Often referred to
as blackmail.
Example
A person knows that an executive who works for a company has
been engaged in a physical altercation with another person. The
person who knows this information threatens the executive that
he will disclose this fact to the company unless the executive
pays him money. The person who makes the threat of exposure
has committed the crime of extortion even though the fact he or
she threatens to divulge is true.
Criminal Fraud
Obtaining title to property through deception or trickery
constitutes the crime of false pretenses. This crime is commonly
referred to as criminal fraud or deceit.
criminal fraud (false pretenses or deceit)
A crime that involves obtaining title to property through
deception or trickery.
There are some frauds so well conducted that it would be
stupidity not to be deceived by them.
C. C. Colton
Lacon, Volume 1 (1820)
Example
Bob, a stockbroker, promises Mary, a prospective investor, that
he will use any money she invests with him to purchase
interests in oil wells. Based on this promise, Mary decides to
make the investment. Bob never intended to invest the money.
Instead, he uses the money for his personal needs. This is
criminal fraud.
Mail Fraud and Wire Fraud

Federal law prohibits the use of mail or wires (e.g., telephone,
television, radio, computer) to defraud another person. These
crimes are called mail fraud4 and wire fraud,5 respectively. The
government often includes these crimes in a criminal charge
against a defendant who is charged with committing another
crime but who also used the mail or wires to further her crime.
Sometimes the government prosecutes a suspect under these
statutes if there is insufficient evidence to prove the real crime
that the criminal was attempting to commit or did commit.
Persons convicted of mail or wire fraud are subject to
imprisonment and the imposition of monetary fines.
Money Laundering
When criminals make money from illegal activities, they are
often faced with the problem of having large sums of money and
no record of how this money was earned. This could easily tip
off the government to their illegal activities. To “wash” the
money and make it look as though it was earned legitimately,
many criminals purchase legitimate businesses and run the
money through those businesses to “clean” it before they
“receive” the money from the so-called legitimate business. The
legitimate business has “cooked” books, which show faked
expenditures and receipts, and is the repository for the “buried”
illegal money. Restaurants, motels, and other cash businesses
make excellent money laundries.
To address the problem of money laundering, the federal
government enacted the Money Laundering Control Act .6 This
act makes it a crime to:
Money Laundering Control Act
A federal statute that makes it a crime to (1) engage knowingly
in a money transaction through a financial institution involving
property from an unlawful activity worth more than $10,000 and
(2) engage knowingly in a financial transaction involving the
proceeds of an unlawful activity.
· Engage knowingly in a monetary transaction through a
financial institution involving property from an unlawful
activity worth more than $10,000.

Examples
Monetary transactions through a financial institution include
making deposits; making withdrawals; conducting transactions
between accounts; or obtaining monetary instruments such as
cashiers’ checks, money orders, and travelers’ checks from a
bank or another financial institution for more than $10,000.
· Engage knowingly in a financial transaction involving the
proceeds of an unlawful activity.
Examples
Financial transactions involving the proceeds of an illegal
activity include buying real estate, automobiles, personal
property, intangible assets, or anything else of value with
money obtained from illegal activities.
Thus, money laundering itself is now a federal crime. The
money that is washed could have been made from illegal
gambling operations, drug dealing, fraud, or other crimes,
including white-collar crimes. Persons convicted of money
laundering can be fined up to $500,000 or twice the value of the
property involved, whichever is greater, and sentenced to up to
20 years in federal prison. In addition, violation of the act
subjects any property involved in or traceable to the offense to
forfeiture to the government.
Racketeer Influenced and Corrupt Organizations Act
Organized crime has a pervasive influence on many parts of the
U.S. economy. To combat this activity, Congress enacted the
Organized Crime Control Act. The Racketeer Influenced and
Corrupt Organizations Act (RICO) is part of this
act.7 Originally RICO was intended to apply only to organized
crime. However, the broad language of the RICO statute has
been used against non–organized crime defendants as well.
RICO, which provides for both criminal and civil penalties, is
one of the most important laws affecting business today.
Racketeer Influenced and Corrupt Organizations Act (RICO)
A federal act that provides for both criminal and civil penalties
for racketeering.
Criminal RICO

RICO makes it a federal crime to acquire or maintain an interest
in, use income from, or conduct or participate in the affairs of
an enterprise through a pattern of racketeering activity.
An enterprise is defined as a corporation, a partnership, a sole
proprietorship, another business or organization, or the
government.
Racketeering activity consists of a number of specifically
enumerated federal and state crimes, including activities such as
gambling, arson, robbery, counterfeiting, and dealing in
narcotics. Business-related crimes, such as bribery,
embezzlement, mail fraud, and wire fraud, are also considered
racketeering. To prove a pattern of racketeering, at least two of
these acts must be committed by the defendant within a 10-year
period. Commission of the same crime twice within this 10-year
period also constitutes criminal RICO.
Individual defendants found criminally liable for RICO
violations can be fined, imprisoned for up to 20 years, or both.
In addition, RICO provides for the forfeiture of any property or
business interests (even interests in a legitimate business) that
were gained because of RICO violations. This provision allows
the government to recover investments made with monies
derived from racketeering activities. The government may also
seek civil penalties for RICO violations, which include
injunctions, orders of dissolution, reorganization of business,
and divestiture of the defendant’s interest in an enterprise.
Civil RICO
Persons injured by a RICO violation can bring a private civil
RICO action against the violator to recover damages for injury
to business or property. A successful plaintiff may
recover treble damages (three times the actual loss) plus
attorney’s fees.
Criminal Conspiracy
A criminal conspiracy occurs when two or more persons enter
into an agreement to commit a crime. To be liable for a criminal
conspiracy, a person must commit an overt act to further the
crime. The crime itself does not have to be committed, however.

The government usually brings criminal conspiracy charges if
(1) the defendants have been thwarted in their efforts to commit
the substantive crime or (2) there is insufficient evidence to
prove the substantive crime.
criminal conspiracy
A crime in which two or more persons enter into an agreement
to commit a crime and an overt act is taken to further the crime.
Example
Two securities brokers agree over the telephone to commit a
securities fraud. They obtain a list of potential victims and
prepare false financial statements necessary for the fraud.
Because they entered into an agreement to commit a crime and
took an overt act, the brokers are guilty of the crime of criminal
conspiracy, even if they never carry out the securities fraud.
The following feature discusses the criminal liability of
corporations for the acts of its officers, directors, and
employees.
Business Environment Corporate Criminal Liability
A corporation is a fictitious legal person that is granted legal
existence by the state when certain requirements are met. A
corporation cannot act on its own behalf. Instead, it must act
through agents, such as a board of directors, officers, and
employees.
Originally, under the common law, it was generally held that
corporations lacked the criminal mind (mens rea) to be held
criminally liable. Modern courts, however, impose corporate
criminal liability. These courts have held that corporations are
criminally liable for the acts of their directors, officers, and
employees. Because corporations cannot be put in prison, they
are usually sanctioned with fines, loss of a license or franchise,
and the like.
Corporate directors, officers, and employees are individually
liable for crimes that they commit on behalf of or to further the
interests of the corporation. In addition, under certain
circumstances, a corporate manager can be held criminally
liable for the criminal activities of his or her subordinates. To

be held criminally liable, the manager must have failed to
supervise the subordinates appropriately. This is an evolving
area of the law.
Critical Legal Thinking Questions
1. Why is criminal liability imposed on a corporation? Do you
think that the penalties (e.g., jail time) that are imposed on
corporate executives for white-collar crimes are sufficient?
Cybercrimes
The development of computers, e-mail, and the Internet has
made it easier for criminals to perpetrate many existing crimes
and has created the ability for them to commit crimes that did
not exist before the digital age. These are commonly referred to
as cybercrimes . The government has had to apply existing laws
to these new media and develop new laws to attack digital
crimes.
cybercrime
A crime that is committed using computers, e-mail, the Internet,
or other electronic means.
One of the most pervasive monetary crimes today is Internet
fraud. The following feature discusses the crime of cyber
identity theft.
Digital Law The Internet and Identity Theft
The advent of the computer, the Internet, and digital devices has
made one type of crime—identity theft—easier to commit.
Identity theft was around long before the computer was
invented, but computers and the Internet have made it much
easier for criminals to obtain the information they need to
commit identity theft. In identity theft—or ID theft—one person
steals information about another person to pose as that person
and take the innocent person’s money or property or to purchase
goods and services using the victim’s credit information.
To commit ID theft, thieves must first obtain certain
information about the victim. This could be the victim’s name,
Social Security number, credit card numbers, bank account
information, and other personal information. With the use of
computers, criminals can obtain the information they need to

commit ID theft more easily. Credit card fraud is one of the
crimes most commonly committed by ID thieves. An ID thief
may use a victim’s existing credit card or open new credit card
accounts in the victim’s name and purchase goods and services
with these credit cards, often using the Internet.
To address the growing problem of ID theft, Congress enacted
the Identity Theft and Assumption Deterrence Act.8 This statute
makes it a federal crime to transfer or use, without authority,
the identity of another person knowingly and with the intent to
commit any unlawful activity as defined by federal law and
state and local felony laws. Violators can be sentenced to prison
for up to 15 years and have any property used in the commission
of ID theft forfeited to the government.
Identity Theft and Assumption Deterrence Act
A federal act that makes it a crime to transfer or use, without
authority, the identity of another person knowingly and with the
intent to commit any unlawful activity as defined by federal law
and state and local felony laws.
Information Infrastructure Protection Act
The Internet and the information age ushered in a whole new
world for education, business, and consumer transactions. It
also made cybercrimes possible. Prosecutors and courts have
wrestled with questions about how to apply existing laws
written before the digital age to new Internet-related abuses.
Congress responded by enacting the Information Infrastructure
Protection (IIP) Act .9 The act addresses computer-related
crimes as distinct offenses. The IIP Act provides protection for
any computer attached to the Internet.
Information Infrastructure Protection (IIP) Act
A federal act that makes it a crime for anyone to access and
acquire information intentionally from a protected computer
without authorization.
The IIP Act makes it a federal crime for anyone to access and
acquire information intentionally from a protected computer
without authorization. The IIP Act does not require that the
defendant accessed a protected computer for commercial

benefit. Thus, persons who transmit a computer virus over the
Internet or hackers who trespass into Internet-connected
computers may be criminally prosecuted under the IIP Act.
Even merely observing data on a protected computer without
authorization is sufficient to meet the requirement that the
defendant has accessed a protected computer. Criminal penalties
for violating the IIP Act include imprisonment and fines.
The IIP Act gives the federal government a much-needed
weapon for directly prosecuting cybercrooks, hackers, and
others who enter, steal, destroy, or look at others’ computer
data without authorization.
Counterfeit Access Device and Computer Fraud and Abuse Act
The Counterfeit Access Device and Computer Fraud and Abuse
Act (CFAA), as amended, makes it a federal crime to access a
computer knowingly to obtain (1) restricted federal government
information, (2) financial records of financial institutions, or
(3) consumer reports of consumer reporting agencies. The act
also makes it a crime to use counterfeit or unauthorized access
devices, such as cards or code numbers, to obtain things of
value, transfer funds, or traffic in such devices.10
The following case involves computer crimes.
CASE 7.1 FEDERAL COURT CASE Computer Crime United
States v. Barrington
648 F.3d 1178, 2011 U.S. App. Lexis 16535 (2011) United
States Court of Appeals for the Eleventh Circuit
“We have no hesitation in concluding that the Government’s
theory rested on a legally cognizable theory of conspiracy to
defraud by wire and computer.”
—Whittemore, Judge
Facts
Marcus Barrington, Christopher Jacquette, and Lawrence
Secrease were undergraduate students at Florida A&M
University (FAMU). They concocted a scheme to access
FAMU’s Internet-based grading system. They went to the
registrar’s office and surreptitiously installed keylogger
software on FAMU’s computers. The keylogger software

recorded the keystrokes made by registrar employees as they
signed into their computers, capturing their usernames and
passwords. That data was automatically transmitted to various
e-mail accounts, including Barrington’s personal e-mail
address.
With the usernames and passwords, Barrington and the others,
using their own computers and FAMU’s computers, accessed
FAMU’s grading system and changed course grades for
themselves and other students. Barrington received
approximately 30–35 grade changes, Jacquette approximately
43, and Secrease approximately 36. Ultimately, the group made
in excess of 650 unauthorized grade changes for at least 90
students, including fraternity brothers. Eventually, a professor
uncovered the scheme, and the FAMU police and the Federal
Bureau of Investigation were notified.
Barrington, Jacquette, and Secrease were indicted and charged
with the federal crimes of conspiring to commit wire fraud
using a protected computer, fraud using a protected computer,
and identity theft. Jacquette and Secrease entered into a plea
agreement and were each sentenced to 22 months in prison.
Barrington went to trial and denied involvement in the scheme.
Jacquette was a witness against Barrington at Barrington’s trial.
Barrington was convicted on all counts and was sentenced to 7
years in prison. Barrington appealed his conviction and
sentence.
Issue
Was Barrington guilty of the crimes charged and was the prison
sentence appropriate?
Language of the Court
There was an adequate basis for the jury to find that Barrington
actually committed the extrinsic acts. Jacquette’s
uncorroborated testimony was sufficient, since he had personal
knowledge of Barrington’s conduct. We have no hesitation in
concluding that the Government’s theory rested on a legally
cognizable theory of conspiracy to defraud by wire and
computer. The evidence was sufficient to support Barrington’s

convictions for aggravated identity theft. Barrington’s lack of
remorse, coupled with his false trial testimony, obstructive
conduct during the investigation, and what the district court
described as his “arrogance and contempt for the law,” certainly
justified the sentence imposed.
Decision
The U.S. court of appeals affirmed Barrington’s conviction and
prison sentence.
Ethics Questions
1. Should Barrington have entered into a plea deal before trial?
Did Jacquette act ethically by being a witness against
Barrington? Was the 7-year prison sentence warranted?
Fourth Amendment Protection From Unreasonable Search and
Seizure
In many criminal cases, the government relies on information
obtained from searches of individuals and businesses.
The Fourth Amendment to the U.S. Constitution protects
persons and corporations from overzealous investigative
activities by the government. It protects the rights of the people
from unreasonable search and seizure by the government. It
permits people to be secure in their persons, houses, papers, and
effects.
unreasonable search and seizure
Protection granted by the Fourth Amendment for people to be
free from unreasonable search and seizure by the government.
Reasonable search and seizure by the government is
lawful. Search warrants based on probable cause are necessary
in most cases. Such a warrant specifically states the place and
scope of the authorized search. General searches beyond the
specified area are forbidden. Warrantless searches are permitted
only (1) incident to arrest, (2) where evidence is in “plain
view,” or (3) in exigent circumstances such as when it is likely
that evidence will be destroyed. Warrantless searches are judged
by the probable cause standard.
search warrant
A warrant issued by a court that authorizes the police to search

a designated place for specified contraband, articles, items, or
documents. A search warrant must be based on probable cause.
Example
The police obtained a search warrant to attach a Global
Positioning System (GPS) to a suspect’s automobile, and the
warrant stated that the device be installed within 10 days;
however, the police did not install the device until the 11th day.
The U.S. Supreme Court held that this was an unconstitutional
search and that the evidence obtained from the search be
excluded from evidence.11
The following case involves the issue of search and seizure of
evidence.
CASE 7.2 U.S. SUPREME COURT CASE Search Navarette v.
California
134 S.Ct. 1683, 2014 U.S. Lexis 2930 (2014) Supreme Court of
the United States
“A mere ‘hunch’ does not create reasonable suspicion.”
—Thomas, Justice
Facts
A driver of a vehicle called 911 and reported that a truck had
run her off the road. She gave a description of the vehicle and
its license number to the 911 dispatcher. The dispatcher relayed
the information to California Highway Patrol officers, who
located and stopped the truck. As two officers approached the
truck they smelled marijuana. A search of the truck bed
revealed 30 pounds of marijuana. The officer arrested the
driver, Lorenzo Prado Navarette, and the passenger, José Prado
Navarette (petitioners). The petitioners moved to suppress the
evidence, arguing that the traffic stop violated the Fourth
Amendment because the officers lacked reasonable suspicion of
criminal activity. The California trial court denied their motion
and the petitioners were sentenced to 90 days in jail plus three
years of probation. The California court of appeals affirmed.
The petitioners appealed to the U.S. Supreme Court.
Issue
Did the stop and search of the truck violate the Fourth

Amendment?
Language of the U.S. Supreme Court
A mere “hunch” does not create reasonable suspicion. But under
appropriate circumstances an anonymous tip can demonstrate
sufficient indicia of reliability to provide reasonable suspicion
to make an investigatory stop. The caller necessarily claimed
eyewitness knowledge of the alleged dangerous driving.
Another indicator of veracity is the caller’s use of the 911
emergency system. The stop was therefore proper.
Decision
The U.S. Supreme Court held that the stop and search of the
truck based on the caller’s tip comported with the requirements
of the Fourth Amendment and was therefore lawful.
Ethics Questions
1. Is there a possibility that someone might make a false report
of criminal activity? How much specificity is required for the
tip to justify a lawful search?
Exclusionary Rule
Evidence obtained from an unreasonable search and seizure is
considered tainted evidence (“fruit of a tainted tree”). Under
the exclusionary rule , such evidence can generally be
prohibited from introduction at a trial or an administrative
proceeding against the person searched. However, this evidence
is freely admissible against other persons.
exclusionary rule
A rule that says evidence obtained from an unreasonable search
and seizure can generally be prohibited from introduction at a
trial or an administrative proceeding against the person
searched.
The U.S. Supreme Court created a good faith exception to the
exclusionary rule.12 This exception allows evidence obtained
illegally to be introduced as evidence against the accused if the
police officers who conducted the unreasonable search
reasonably believed that they were acting pursuant to a lawful
search warrant.

1. Does the exclusionary rule allow some guilty parties to go
free? Is this an acceptable result when balanced against the
protections afforded by the Fourth Amendment?
In the following case, the U.S. Supreme Court had to decide
whether a search was reasonable.
CASE 7.3 U.S. SUPREME COURT CASE Search Maryland v.
King
the United States
“The advent of DNA technology is one of the most significant
scientific advancements of our era.”
—Kennedy, Justice
Facts
In 2003, a man concealing his face and armed with a gun broke
into a woman’s home in Salisbury, Maryland, and then raped
her. The police were unable to identify or apprehend the
assailant but they did obtain from the victim a sample of the
perpetrator’s DNA (deoxyribonucleic acid).
In 2009, Alonzo King was arrested in Maryland and charged
with first- and second-degree assault for menacing a group of
people with a shotgun. As part of the booking procedure for
serious offenses, a DNA sample was taken from King by
applying a cotton swab—known as a buccal swab—to the inside
of his cheeks. His DNA was found to match the DNA taken
from the Salisbury rape victim. King was tried and convicted of
the 2003 rape. King alleged that the DNA taken when he was
booked in 2009 violated the Fourth Amendment as an
unreasonable search and seizure and therefore could not be used
to convict him of the 2003 rape. The court of appeals of
Maryland agreed and set the rape conviction aside. The U.S.
Supreme Court granted review.
Issue
Did Maryland’s collection of King’s DNA during the booking
procedure in 2009 constitute an unreasonable search and
seizure?

The advent of DNA technology is one of the most significant
scientific advancements of our era. It can be agreed that using a
buccal swab on the inner tissues of a person’s cheek in order to
obtain DNA samples is a search. The Court concludes that DNA
identification of arrestees is a reasonable search that can be
considered part of a routine booking procedure. When officers
make an arrest supported by probable cause to hold for a serious
offense and they bring the suspect to the station to be detained
in custody, taking and analyzing a cheek swab of the arrestee’s
DNA is, like fingerprinting and photographing, a legitimate
police booking procedure that is reasonable under the Fourth
Amendment.
Decision
The U.S. Supreme Court held that the taking of the DNA from
King at the time of booking was a reasonable search and seizure
and reversed the judgment of the court of appeals of Maryland.
Ethics Questions
1. Why did King want his DNA kept out of his criminal trial for
the 2003 rape charge? Should law enforcement and the courts
rely on DNA evidence as much as they do?
The following case involves the issue of searching cell phones.
CASE 7.4 U.S. SUPREME COURT CASE Search of Cell
Phones Riley v. California and United States v. Wurie
the United States
“Our answer to the question of what police must do before
searching a cell phone seized incident to an arrest is
accordingly simple — get a warrant.”
—Roberts, Chief Justice
Facts
Two cases were combined for decision by the U.S. Supreme
Court. In the first case, David Riley was stopped for driving
with expired registration tags. A search of the car turned up two
concealed and loaded firearms. The police confiscated Riley’s
smart phone and went through it and found gang related
information and a photograph of Riley in front of a car they

suspected to be involved in a shooting a few weeks earlier.
Based on the information retrieved from the cell phone Riley
was charged in connection with that earlier shooting, with firing
at an occupied vehicle, assault with a semiautomatic weapon,
and attempted murder. Riley was convicted of all charges and
was sentenced to 15 years in prison.
In the second case, police observed Brima Wurie making an
apparent drug sale from a car. The officers arrested Wurie and
seized two cell phones from him. After monitoring the calls
made to the cell phones, police determined the location of the
calls, which was Wurie’s apartment. The police went to the
apartment and searched the apartment and found and seized
crack cocaine, marijuana, drug paraphernalia, a firearm and
ammunition, and cash. Wurie was charged with distributing
crack cocaine and being a felon in possession of a firearm.
Wurie was convicted and sentenced to 262 months in prison.
Prior to their trials, Riley and Wurie moved to suppress all the
evidence the police obtained from their cell phones, alleging
that the information obtained from their cell phones were the
fruits of an unconstitutional search in violation of the Fourth
Amendment. The courts in each case denied their requests.
After appeals, the U.S. Supreme Court granted certiorari to hear
these combined cases.
Issue
Can the police, without a warrant, search digital information on
a cell phone from an individual who has been arrested?
These cases require us to decide how the search incident to
arrest doctrine applies to modern cell phones. Courts have
approved searches of a variety of personal items carried by an
arrestee (e.g., billfolds, address books, wallets, and purses). The
government parties assert that a search of all data stored on a
cell phone is materially indistinguishable from searches of these
sorts of physical items.
Cell phones differ in both a quantitative and qualitative sense
from other objects that might be kept on an arrestee’s person.

Before cell phones, a search of a person was limited by physical
realities and tended as a general matter to constitute only a
narrow intrusion on privacy. But the possible intrusion on
privacy is not limited in the same way when it comes to cell
phones.
The criminal is to go free because the constable has blundered.
Chief Judge Cardozo
People v. Defore 242 N.Y. 13, 150 N.E. 585, 1926 N.Y. Lexis
956 (1926)
Today, it is no exaggeration to say that many of the more than
90% of American adults who own a cell phone keep on their
person a digital record of nearly every aspect of their lives—
from the mundane to the intimate. Allowing the police to
scrutinize such records on a routine basis is quite different from
allowing them to search a personal item or two in the occasional
case.
Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they
hold for many Americans “the privacies of life.” Our answer to
the question of what police must do before searching a cell
phone seized incident to an arrest is accordingly simple—get a
warrant.
Decision
The U.S. Supreme Court held that police cannot, without a
warrant, search digital information on a cell phone from an
individual who has been arrested.
Ethics Question
Does the Supreme Court’s decision protect privacy rights? Did
the Supreme Court justices evidence an understanding of the
digital world in their opinion?
Searches of Business Premises
Generally, the government does not have the right to search
business premises without a search warrant.13 However, certain
hazardous and regulated industries are subject to warrantless
searches if proper statutory procedures are met.
Examples

Sellers of firearms, liquor stores and bars that sell alcohol, coal
mines, and the like, are businesses subject to warrantless
searches.
Fifth Amendment Privilege Against Self-Incrimination
The Fifth Amendment to the U.S. Constitution provides that no
person “shall be compelled in any criminal case to be a witness
against himself.” Thus, a person cannot be compelled to give
testimony against him- or herself. A person who asserts this
right is described as “taking the Fifth.” This protection applies
to federal cases and is extended to state and local criminal cases
through the Due Process Clause of the Fourteenth Amendment.
The right established by the Fifth Amendment is referred to as
the privilege against self-incrimination .
privilege against self-incrimination
The Fifth Amendment provision that a person may not be
required to be a witness against him- or herself in a criminal
case.
1. What is the policy behind adding the privilege against self-
incrimination to the U.S. Constitution? What percentage of
criminal defendants “take the Fifth” and do not take the witness
stand?
Nontestimonial evidence (e.g., fingerprints, body fluids) may be
obtained without violating the Fifth Amendment.
The protection against self-incrimination applies only to natural
persons who are accused of crimes. Therefore, artificial persons
(e.g., corporations, partnerships) cannot raise this protection
against incriminating testimony.14 Thus, business records of
corporations and partnerships are not generally protected from
disclosure, even if they incriminate individuals who work for
the business. However, certain “private papers” of
businesspersons (e.g., personal diaries) are protected from
disclosure.
Miranda Rights
Many people have not read and memorized the provisions of the
U.S. Constitution. The U.S. Supreme Court recognized this fact

when it decided the landmark case Miranda v. Arizona in
1966.15 In this case, the Supreme Court held that the Fifth
Amendment privilege against self-incrimination is not useful
unless a criminal suspect has knowledge of this right.
Therefore, the Supreme Court required that the following
warning—colloquially called the Miranda rights —be read to a
criminal suspect before he or she is interrogated by the police or
other government officials:
Miranda rights
Rights that a suspect must be informed of before being
interrogated so that the suspect will not unwittingly give up his
or her Fifth Amendment right.
· You have the right to remain silent.
· Anything you say can and will be used against you.
· You have the right to consult a lawyer and to have a lawyer
present with you during interrogation.
· If you cannot afford a lawyer, a lawyer will be appointed free
of charge to represent you.
Many police departments read an accused a more detailed
version of the Miranda rights (see Exhibit 7.1). This is designed
to cover all issues that a detainee might encounter while in
police custody. A detainee may be asked to sign a statement
acknowledging that the Miranda rights have been read to him or
her.
POLICE DEPARTMENT
PINE SHORES, MICHIGAN
· You have the right to remain silent and refuse to answer
questions. Do you understand?
· Anything you say may be used against you in a court of law.
Do you understand?
· You have the right to consult an attorney before speaking to
the police and to have an attorney present during questioning
now or in the future. Do you understand?
· If you cannot afford an attorney, one will be appointed for you
before any questioning if you wish. Do you understand?
· If you decide to answer questions now without an attorney

present, you will still have the right to stop answering at any
time until you talk to an attorney. Do you understand?
· Knowing and understanding your rights as I have explained
them to you, are you willing to answer my questions without an
attorney present?
Exhibit 7.1 Miranda Rights
Any statements or confessions obtained from a suspect before
he or she has been read the Miranda rights can be excluded from
evidence at trial. In 2000, the U.S. Supreme Court
upheld Miranda in Dickerson v. United States.16 In that
opinion, Chief Justice Rehnquist stated, “We do not think there
is justification for overruling Miranda. Miranda has become
embedded in routine police practice to the point where the
warnings have become part of our national culture.”
In the following case, the court had to decide if Miranda rights
had been given properly to a criminal suspect.
CASE 7.5 STATE COURT CASE Miranda Rights Ragland v.
Commonwealth of Kentucky
191 S.W.3d 569, 2006 Ky. Lexis 251 (2006) Supreme Court of
Kentucky
“Miranda does not require a ‘talismanic incantation’ as long as
the warnings adequately advise the suspect of
his Miranda rights.”
—Cooper, Justice
Facts
One night, Trent DiGiuro, a student athlete at the University of
Kentucky, was sitting in a chair on the front porch of his
residence celebrating his twenty-first birthday with friends
when he was shot and killed. Fragments of the bullet were
recovered from DiGiuro’s body, and a firearms expert
discovered that the bullet had been fired from a .243-caliber
rifle.
Six years elapsed after the murder, which was not solved. At
that time, Shane Layton Ragland’s ex-girlfriend informed the
police that Ragland confessed to her that he killed DiGiuro
because DiGiuro had caused Ragland to be blackballed by a

college fraternity. The witness also told police that Ragland had
shown her the rifle he had used to shoot DiGiuro and that he
told her he hid the rifle at his mother’s residence. Pursuant to a
search warrant, the police recovered a Wetherby Vanguard .243-
caliber rifle from Ragland’s mother’s residence with three
unspent .243-caliber bullets in the chamber. A police
metallurgist fired several recovered bullets and found that they
were indistinguishable in metallurgical composition with the
bullet that had killed DiGiuro. Ragland was taken into police
custody, was interrogated and answered police questions until
he eventually asked for an attorney. Ragland stood trial for the
murder of Trent DiGiuro. After substantial evidence was
produced, including the statements made by Ragland to the
police during his interrogation, Ragland was convicted by a jury
of murder and was sentenced to 30 years in prison. Ragland
appealed, asserting that the statements he made during the
interrogation should have been suppressed because he (1)
received an inadequate Miranda warning, (2) never waived any
of his Miranda rights, and (3) asserted the right to counsel.
Issue
Was defendant Ragland properly given his Miranda rights?
Language of the Court
After obtaining preliminary identification information, Sergeant
Barnard of the Lexington police, the lead interrogator, advised
appellant of his rights under Miranda v. Arizona.
Miranda does not require a “talismanic incantation” as long as
the warnings adequately advise the suspect of
his Miranda rights. Nor do the warnings have to be in writing,
much less audiotaped or videotaped. The trial court’s finding
that appellant voluntarily waived his Miranda rights was
supported by substantial evidence.
Later in the interrogation, appellant did request an attorney, and
the trial court properly suppressed any statements he made after
that request.
Decision
The supreme court of Kentucky held that appellant Ragland had

been read his Miranda rights properly and had waived his right
to an attorney. Thus, any statements he made during the
interrogation, up until the time he clearly asked for an attorney,
constitutes evidence that was properly admissible at his trial.
Note
1. Trent’s father, Michael DiGiuro, on behalf of his son’s
estate, filed a civil lawsuit for the tort of wrongful death against
Ragland. After a jury trial and appeal, DiGiuro was awarded
$3,341,708 in compensatory damages and $30,000,000 in
punitive damages against Ragland.
Ethics Questions
1. Do you think that Ragland understood his Miranda rights
when he answered the interrogators’ questions? Do you think
many suspects answer questions during interrogation when they
should have pleaded the Fifth Amendment privilege to avoid
incriminating themselves and demanded a lawyer? What have
you learned from this case?
Attorney–Client and Other Privileges
To obtain a proper defense, an accused should tell his lawyer
the truth so that the lawyer can prepare the best defense she can
for him. However, the accused must be able tell his attorney
facts about his case without fear that the attorney will be called
as a witness against him. This information is protected from
disclosure by the attorney–client privilege , which is recognized
by the Fifth Amendment. Either the client or the attorney can
raise this privilege. For the privilege to apply, the information
must be told to the attorney in his or her capacity as an attorney
and not as a friend or neighbor or such.
attorney–client privilege
A rule that says a client can tell his or her lawyer anything
about the case without fear that the attorney will be called as a
witness against the client.
Example
Cedric is accused of murder and employs Gloria, a renowned
criminal attorney, to represent him. During the course of their
discussions, Cedric confesses to the murder. Gloria cannot be a

witness against Cedric at his criminal trial.
The Fifth Amendment has also recognized the following
privileges under which an accused may keep the following
individuals from being witnesses against him or her:
At the present time in this country there is more danger that
criminals will escape justice than that they will be subjected to
tyranny.
Justice Holmes, Dissenting Opinion,
Kepner v. United States 195 U.S. 100, 24 S.Ct. 797, 1904 U.S.
Lexis 820 (1904)
· Psychiatrist/psychologist–patient privilege so that the accused
may tell the truth in order to seek help for his or her condition.
· Priest/rabbi/minister/imam–penitent privilege so that the
accused may tell the truth in order to repent, be given help, and
seek forgiveness for his or her deed.
· Spouse–spouse privilege so that the family will remain
together.
· Parent–child privilege so that the family will remain together.
A spouse or child who is injured by a spouse or parent (e.g.,
domestic abuse) may testify against the accused. In addition, if
the accused discloses that he or she is planning to commit a
crime in the future (e.g., murder), the accused’s lawyer;
psychiatrist or psychologist; or priest, rabbi, minister, or imam
is required to report this to the police or other relevant
authorities.
The U.S. Supreme Court has held that there is no accountant–
client privilege under federal law.17 Thus, an accountant can be
called as a witness in cases involving federal securities laws,
federal mail or wire fraud, or other federal crimes.
Approximately 20 states have enacted special statutes that
create an accountant–client privilege. An accountant cannot be
called as a witness against a client in a court action in a state
where these statutes are in effect. However, federal courts do
not recognize this privilege.
Immunity from Prosecution
On occasion, the government may want to obtain information

from a suspect who has asserted his or her Fifth Amendment
privilege against self-incrimination. The government can often
achieve this by offering the suspect immunity from
prosecution . Immunity from prosecution means that the
government agrees not to use against a person granted immunity
any evidence given by that person. Once immunity is granted,
the suspect loses the right to assert his or her Fifth Amendment
privilege.
immunity from prosecution
The government’s agreement not to use against a person granted
immunity any evidence given by that person.
Example
Grants of immunity are often given when the government wants
a suspect to give information that will lead to the prosecution of
other, more important criminal suspects.
Partial grants of immunity are also available. A suspect must
agree to a partial grant of immunity in order for it to occur.
In serious cases, the government can place a witness in a
government protective program whereby, after the trial, the
witness and her or his family are moved permanently to an
undisclosed location, given a new identity, and provided
monetary assistance. Such a witness is also usually protected
prior to trial.
Other Constitutional Protections
Besides those already discussed in this chapter, many other
provisions in the U.S. Constitution and its amendments
guarantee and protect certain other rights in the criminal
process. Several of these additional rights are described in the
paragraphs that follow.
Fifth Amendment Protection Against Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment protects
persons from being tried twice for the same crime.
Double Jeopardy Clause
A clause of the Fifth Amendment that protects persons from
being tried twice for the same crime.
Example

If a state tries a suspect for the crime of murder and the suspect
is found not guilty, the state cannot bring another trial against
the accused for the same crime. This is so even if more evidence
later surfaces that would lead to conviction. The government is
given the opportunity to bring its case against an accused once
and cannot keep retrying the same case.
If the same act violates the laws of two or more jurisdictions,
each jurisdiction may try the accused.
Example
If an accused kidnaps a person in one state and brings the
victim across a state border into another state, the act violates
the laws of two states and the federal government. Thus, three
jurisdictions can prosecute the accused without violating the
Double Jeopardy Clause.
If an accused is tried once and the jury reaches a hung
jury decision—that is, the verdict is not unanimously either
guilty or not guilty—the government can retry the case against
the accused without violating the Double Jeopardy Clause.
1. Why was the Double Jeopardy Clause added to the U.S.
Constitution? What does it prevent the government from doing?
Sixth Amendment Right to a Public Jury Trial
The Sixth Amendment guarantees that a criminal defendant has
the right to a public jury trial. This includes the rights to (1) be
tried by an impartial jury of the state or district in which the
alleged crime was committed, (2) confront (cross-examine) the
witnesses against the accused, (3) have the assistance of a
lawyer, and (4) have a speedy trial.
The Speedy Trial Act is a federal statute that requires that a
criminal defendant in a federal case be brought to trial within
70 days after indictment.18 Continuances may be granted by the
court to serve the “ends of justice” and are often granted.
WEB EXERCISE
Go to http://usdoj.gov/usao/and read the Mission Statement of
U.S. Attorneys of the United States Department of Justice.
Eighth Amendment Protection Against Cruel and Unusual

Punishment
The Eighth Amendment protects criminal defendants from cruel
and unusual punishment. For example, it prohibits the torture of
criminals. However, this clause does not prohibit capital
punishment.19 The U.S. Supreme Court has held that, in capital
punishment cases, death by lethal injection is not cruel and
unusual punishment.20
Example
The U.S. Supreme Court has held that the imposition of life
imprisonment without the possibility of parole on a juvenile
defendant convicted of murder violates the Eighth Amendment’s
prohibition against cruel and unusual punishment.21
The following feature examines how France handles the issue of
the death penalty.
Global Law France Does Not Impose the Death Penalty
Eiffel Tower, Paris, France
The majority of the states and the federal government in the
United States permit the death penalty to be imposed for many
heinous crimes. France, however, has abolished the death
penalty in all cases. Most developed countries have extradition
treaties with each other whereby one country can, through an
official procedure, request and obtain a person located in
another country to be returned to stand trial in the country
seeking the extradition. France, however, will not extradite a
person already in France to the United States or elsewhere
where the death penalty could be imposed. Over 120 countries
in the world, by either law or practice, do not impose the death
penalty. The death penalty remains a controversial issue in the
United States as well as many foreign countries.
Key Terms and Concepts
1. Accountant–client privilege (162)
2. Actus reus (criminal act, guilty act) (143)
3. Arraignment (145)
4. Arrest (144)

5. Arrest warrant (144)
6. Arson (150)
7. Attorney–client privilege (161)
8. Bail (146)
9. Bail bond (146)
10. Beyond a reasonable doubt (141)
11. Blackmail (151)
12. Booking (145)
13. Bribery (151)
14. Burden of proof (141)
15. Burglary (149)
16. Capital murder (147)
17. Civil action (144)
18. Civil RICO (153)
19. Common crime (147)
20. Corporate criminal liability (153)
21. Counterfeit Access Device and Computer Fraud and Abuse
Act (CFAA) (154)
22. Crime (141)
23. Criminal conspiracy (153)
24. Criminal fraud (false pretenses or deceit) (151)
25. Criminal intent (143)
26. Criminal law (141)
27. Criminal RICO (153)
28. Cruel and unusual punishment (163)
29. Cybercrime (154)
30. Defendant (142)
31. Defense attorney (142)
32. Double Jeopardy Clause (163)
33. Eighth Amendment (163)
34. Embezzlement (150)
35. Exclusionary rule (157)
36. Extortion (151)
37. Extortion under color of official right (151)
38. Felony (142)
39. Felony murder rule (148)

40. Fifth Amendment (159)
41. First-degree murder (147)
42. Forgery (150)
43. Fourth Amendment (156)
44. General intent crime (143)
45. Grand jury (145)
46. Guilty (146)
47. Hung jury (147)
48. Identity theft (ID theft) (154)
49. Identity Theft and Assumption Deterrence Act (154)
50. Immunity from prosecution (162)
51. Indictment (145)
52. Information (145)
53. Information Infrastructure Protection Act (IIP Act) (154)
54. Intent crime (143)
55. Involuntary manslaughter (148)
56. Judgment proof (144)
57. Kickback (payoff) (151)
58. Larceny (149)
59. Magistrate (145)
60. Mail fraud (151)
61. Mala in se(142)
62. Mala prohibita(142)
63. Mens rea (criminal intent, evil intent) (146)
64. Miranda rights (160)
65. Misdemeanor (142)
66. Money laundering (152)
67. Money Laundering Control Act (152)
68. Murder (147)
69. Nolo contendere(149)
70. Nonintent crime (144)
71. Not guilty (146)
72. Parent–child privilege (162)
73. Penal code (141)
74. Plaintiff (142)
75. Plea (146)

76. Plea bargain (147)
77. Plea bargaining agreement (147)
78. Presumed innocent until proven guilty (141)
79. Priest/rabbi/minister/imam–penitent privilege (162)
80. Privilege against self-incrimination (159)
81. Probable cause (144)
82. Prosecutor (prosecuting attorney) (142)
83. Psychiatrist/psychologist–patient privilege (162)
84. Public defender (142)
85. Racketeer Influenced and Corrupt Organizations Act
(RICO) (152)
86. Reasonable search and seizure (156)
87. Receiving stolen property (149)
88. Regulatory statutes (142)
89. Right to a public jury trial (163)
90. Robbery (149)
91. Search warrant (156)
92. Second-degree murder (148)
93. Self-incrimination (159)
94. Sixth Amendment (163)
95. Specific intent crime (143)
96. Speedy Trial Act (163)
97. Spouse–spouse privilege (162)
98. Theft (149)
99. Unanimous decision (147)
100. Unreasonable search and seizure (156)
101. Violation (142)
102. Voluntary manslaughter (148)
103. Warrantless arrest (145)
104. Warrantless search (156)
105. White-collar crime (150)
106. Wire fraud (151)
Law Case with Answer City of Indianapolis, Indiana v. Edmond
1. Facts The police of the city of Indianapolis, Indiana, began to
operate vehicle roadblock checkpoints on Indianapolis roads in
an effort to interdict unlawful drugs. Once a car had been

stopped, police questioned the driver and passengers and
conducted an open-view examination of the vehicle from the
outside. A narcotics-detection dog walked around outside each
vehicle. The police conducted a search and seizure of the
occupants and vehicle only if particular suspicion developed
from the initial investigation. The overall “hit rate” of the
program was approximately 9 percent.
James Edmond and Joel Palmer, both of whom were attorneys
who had been stopped at one of the Indianapolis checkpoints,
filed a lawsuit on behalf of themselves and the class of all
motorists who had been stopped or were subject to being
stopped at such checkpoints. They claimed that the roadblocks
violated the Fourth Amendment’s prohibition against
unreasonable search and seizure.
Does the Indianapolis highway checkpoint program, whereby
police, without individualized suspicion, stop vehicles for the
primary purpose of discovering and interdicting illegal narcotics
violate the Fourth Amendment to the U.S. Constitution?Answer
Yes, the Indianapolis highway checkpoint program whereby
police, without individualized suspicion, stop vehicles for the
primary purpose of discovering and interdicting illegal narcotics
does violate the Fourth Amendment to the U.S. Constitution.
The Fourth Amendment requires that searches and seizures be
reasonable. A search or seizure is ordinarily unreasonable in the
absence of individualized suspicion of wrongdoing. In only
limited circumstances does this rule not apply. The Fourth
Amendment would not approve a checkpoint program whose
primary purpose is to detect evidence of ordinary criminal
wrongdoing. Because the primary purpose of the Indianapolis
narcotics checkpoint program is to uncover evidence of ordinary
criminal wrongdoing, the program contravenes the Fourth
Amendment.
Of course, certain circumstances might justify a law
enforcement checkpoint where the primary purpose would be
necessary for some emergency. For example, the Fourth
Amendment would permit an appropriately tailored roadblock

set up to thwart an imminent terrorist attack or to catch a
dangerous criminal who is likely to flee by way of a particular
route. But barring such emergencies—which did not exist in this
case—the police cannot use a checkpoint program whose
primary purpose is to detect evidence of ordinary criminal
wrongdoing of possessing or uses illegal narcotics. The vehicle
roadblock checkpoint used in this case violates the Fourth
Amendment. City of Indianapolis, Indiana v. Edmond, 531 U.S.
32, 121 S.Ct. 447, 2000 U.S. Lexis 8084 (Supreme Court of the
United States, 2000)Critical Legal Thinking Cases
1. 7.1 Search and Seizure Bernardo Garcia had served time in
jail for methamphetamine (meth) offenses. On release from
prison, a person reported to the police that Garcia had brought
meth to her and used it with her. Another person told police that
Garcia bragged that he could manufacture meth in front of a
police station without being caught. A store’s security video
system recorded Garcia buying ingredients used in making
meth. From someone else, the police learned that Garcia was
driving a Ford Tempo.
The police found the car parked on the street near where Garcia
was staying. The police placed a GPS (global positioning
system) tracking device underneath the rear bumper of the car
so the device could receive and store satellite signals that
indicate the device’s location. Using the device, the police
learned that Garcia had been visiting a large tract of land. With
permission of the owner of the land, the police conducted a
search and discovered equipment and materials to manufacture
meth. While the police were there, Garcia arrived in his car.
The police had not obtained a search warrant authorizing them
to place the GPS tracker on Garcia’s car.
The government brought criminal charges against Garcia. At
Garcia’s criminal trial in U.S. district court, the evidence the
police obtained using the GPS was introduced. Based on this
evidence, Garcia was found guilty of crimes related to the
manufacture of meth. Garcia appealed to the U.S. court of
appeals, arguing that the use of the GPS tracking device by the

police was an unreasonable search, in violation of the Fourth
Amendment to the Constitution.
Does the police officers’ use of the GPS without first obtaining
a search warrant constitute an unreasonable search in violation
of the Fourth Amendment? United States of America v. Garcia,
474 F.3d 994, 2007 U.S. App. Lexis 2272 (United States Court
of Appeals for the Seventh Circuit, 2007)
2. 7.2 Cruel and Unusual Punishment One night in 2003, Evan
Miller, who was 14 years old, was smoking marijuana with
another juvenile and an adult, Cole Cannon, at Cannon’s trailer.
When Cannon passed out, Miller stole his wallet, splitting about
$300 with the other juvenile. When Miller tried to put the wallet
back into Cannon’s pocket, Cannon awoke and grabbed Miller.
Miller grabbed a baseball bat and repeatedly struck Cannon with
it. Miller placed a sheet over Cannon’s head, told him “I am
God, I’ve come to take your life” and delivered one more blow.
Cannon was not dead. Miller and his accomplice set Cannon’s
trailer on fire. Cannon died from his injuries and smoke
inhalation. Miller was caught and was tried as an adult as
permitted by Alabama law. Miller was convicted of murder in
the course of arson. Under Alabama law, the crime carried a
mandatory minimum punishment of life in prison without the
possibility of parole, which was assessed against Miller. Miller
challenged the sentence, alleging that a minimum sentence of
life in prison without the possibility of parole assessed against a
juvenile constitutes cruel and unusual punishment in violation
of the Fifth Amendment to the U.S. Constitution.
Does Alabama’s mandatory sentencing requirement of life
imprisonment without the possibility of parole as applied to
juvenile defendants constitute cruel and unusual punishment in
violation of the Fifth Amendment? Miller v. Alabama, 132 S.Ct.
2455, 2012 U.S. Lexis 4873 (Supreme Court of the United
States, 2012)
3. 7.3 Search Kentucky undercover police officers set up a
controlled buy of cocaine outside an apartment complex. After
the deal took place, uniformed police moved in on the suspect.

The suspect ran to a breezeway of an apartment building. As the
officers arrived in the area, they heard a door shut. At the end
of the breezeway were two apartments, one on the left and one
on the right. The officers smelled marijuana smoke emanating
from the apartment on the left.
The officers banged on the door as loudly as they could, while
yelling “Police!” As soon as the officers started banging on the
door, they heard people moving inside and things being moved
inside the apartment. These noises led the officers to believe
that drug-related evidence was about to be destroyed. At that
point, the officers kicked in the door and entered the apartment,
where they found three people, including Hollis King, his
girlfriend, and a guest. The officers saw marijuana and powder
cocaine in plain view. A further search turned up crack cocaine,
cash, and drug paraphernalia. Police eventually entered the
apartment on the right side of the breezeway and found the
suspect who was the initial target of their investigation.
King was indicted for criminal violations, including trafficking
in marijuana, trafficking in controlled substances, and persistent
felony offender status. King filed a motion to have the evidence
suppressed as the fruits of an illegal warrantless search in
violation of the Fourth Amendment. The government argued
that the search was a valid warrantless search that was justified
by exigent circumstances.
Is the warrantless search constitutional? Kentucky v. King, 131
S.Ct. 1849, 2011 U.S. Lexis 3541 (Supreme Court of the United
States, 2011)
4. 7.4 Search William Wheetley, a police officer, was on a
routine patrol in his police car with Aldo, a German shepherd
dog trained to detect certain narcotics (methamphetamine,
marijuana, cocaine, heroin, and ecstasy). Wheetley stopped
Clayton Harris’s truck because it had an expired license plate.
On approaching the driver’s side door, Wheetley saw that Harris
was visibly nervous, shaking, and breathing rapidly. Wheetley
also noticed an open can of beer in the truck’s cup holder.
Wheetley asked Harris for consent to search the truck, but

Harris refused. Wheetley then retrieved Aldo from the patrol car
and walked him around Harris’s truck. Aldo stopped and alerted
at the driver’s-side door, signaling that he had smelled drugs
there. Wheetley concluded, based principally on Aldo’s alert,
that he had probable cause to search the truck. The search
revealed 200 loose pseudoephedrine pills, 8,000 matches, a
bottle of hydrochloric acid, two containers of antifreeze, and a
coffee filter full of iodine crystals—all ingredients for making
methamphetamine. Wheetley arrested Harris and the state of
Florida charged Harris with possession of pseudoephedrine for
use in manufacturing methamphetamine. At trial, Harris moved
to suppress the evidence found in his truck on the grounds that
Aldo’s alert had not given Wheetley probable cause for the
search and therefore the evidence against Harris was
inadmissible under the Fourth Amendment protection against
unreasonable search and seizure. The trial court permitted the
evidence to be submitted at trial.
Did Aldo’s alert give Wheetley probable cause to search
Harris’s truck? Florida v. Harris, 133 S.Ct. 1050, 2013 U.S.
Lexis 1121 (Supreme Court of the United States, 2013)
5. 7.5 Search and Seizure Government agents suspected that
marijuana was being grown in the home of Danny Kyllo, who
lived in a triplex building in Florence, Oregon. Indoor
marijuana growth typically requires high-intensity lamps. To
determine whether an amount of heat was emanating from
Kyllo’s home consistent with the use of such lamps, federal
agents used a thermal imager to scan the triplex. Thermal
imagers detect infrared radiation and produce images of the
radiation. The scan of Kyllo’s home, which was performed from
an automobile on the street, showed that the roof over the
garage and a side wall of Kyllo’s home were “hot.” The agents
used this scanning evidence to obtain a search warrant
authorizing a search of Kyllo’s home. During the search, the
agents found an indoor growing operation involving more than
100 marijuana plants.
Kyllo was indicted for manufacturing marijuana, a violation of

CHAPTER 7 Criminal Law and CybercrimeNew York Police Departmen.docx

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